Amicus Curiae Brief — Hanousek v. United States

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| Supreme Cour, U.S.

FILED

4 ) OCT 22 0

No. 99-323

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

EDWARD HANOUSEK, JR.,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF

THE WASHINGTON LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

DANIEL J. POPEO PETER L. GRAY

PAUL D. KAMENAR LAWRENCE S. EBNER*

WASHINGTON LEGAL ROBERT A. MATTHEWS

FOUNDATION LAWRENCE J. JOSEPH

2009 Massachusetts Ave.. NW MCKENNA & CUNEO, L.L.P.

Washington, D.C. 20036 1900 K Street, NW

(202) 588-0302 Washington, D.C. 20006

(202) 496-7500

*Counsel of Record

Date: October 22, 1999

TABLE OF CONTENTS

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INTEREST OF AMICUS CURIAE ........scccseccssersccesscesocseseess l

INTRODUCTION AND STATEMENT

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SUMMARY OF ARGUMENT ............:csscccssscsssssosseseseserooees 4

REASONS FOR GRANTING THE WRIT ...............:ecec00e 6

I. THE CLEAN WATER ACT IS NOT

“PUBLIC WELFARE” LEGISLATION ....................006. 6

A. The Public Welfare Doctrine Always

Has Been Limited to Inherently

Dangerous Activities For Which the

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B. The Ninth Circuit Misapplied The

Public Welfare Doctrine To The Clean

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1. Punishment for negligent discharges

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2. The conduct proscribed by the Clean

Water Act is not apparent to the

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3. The Ninth Circuit's interpretation of

“negligently” is not appropriate in the

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Il. THE IMPLICATIONS OF THE NINTH

CIRCUIT’S DECISION REACH BEYOND

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A. The Clean Air Act Has A Similar Criminal

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B. The Ninth Circuit’s Decision Will Have

a Negative Impact on Environmental

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TABLE OF AUTHORITIES

Cases

Morissette v. United States, 342 U.S. 246 (1952) oo... 8

Nve & Nissen v. United States, 336 U.S. 613 (1949) .......... 13

Regina v. Woodrow, 15 M. & W. 404 (Exch. 1846) ............. 7

Staples v. United States, 511 U.S. 600 (1994)... 5,8

United States v. Balint, 258 U.S. 250 (1922) .o.........cccccceee 7

United States v. Dotterweich, 320 U.S. 277 (1943) ....0000.... 12

United States v. Hanousek, 176 F.3d 1116

EE ITED eiieciresicvnicictnedncentinaniiananinenciningsadmantensens passim

United States v. Hitachi America, Ltd., 172 F.3d

ee 13

United States v. International Minerals & Chem.

TR, 8, 11

United States v. Mills, 817 F. Supp. 1546, 1548

(N.D. Fla. 1993), aff'd, 904 F.2d 713 (11"

Se )

Weitzenhoff v. United States, 35 F.3d 1275

(9" Cir. 1993), cert. denied sub nom.,

Mariani v. United States, 513 U.S. 1128

RES a eae ee 1,5, 11,14

Statutes

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SD UBL: © CRUD pisctretctseceniicsiniciniteeetiaticiecisabii 13

SB CRE 6 DD iiciccciinesiniiitenibaiilienaiaibll 13

SB ORI: Oise cccienstiishicnliciiielschaaniilialeniai 13

SO UBL: 0 I i nitnnintsisntnbiabiiidial 13

33 U.S.C. § 1321 (0)(3) ccccccccccsccssssesessessvsssveeesencennessseee 4,9, 11

50 CG OI reece liciniaabenneiens 13

90 COE 0 CRD civics i

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Regulations

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Miscellaneous

U.S. Army Corps of Engineers, Wetlands Delineation

STENT citcnsitsesnnisiisiahpinisiapaiibaniiimtabbidigteeamaiieciismunen 10

U.S. Environmental Protection Agency, Wetland

Identification and Delineation Manual (1988) .............. 11

United States Sentencing Guidelines, § 2Q1.2

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INTEREST OF AMICUS CURIAE'

The Washington Legal Foundation (“WLF’) is a

national non-profit public interest law and policy center

based in Washington, D.C., with supporters nationwide.

WLF devotes substantial resources to litigating cases and

filing amicus curiae briefs in "his and other federal courts

promoting a limited and accountable government, and

opposing overreaching by those administrative agencies and

courts which act contrary to the plain meaning of the

language chosen by Congress in the substantive statutes at

issue.

WLF has participated as amicus curiae in numerous

environmental cases, including those involving criminal

application of the Clean Water Act (“CWA”). See, e.g.,

Weitzenhoff v. United States, 35 F.3d 1275 (9" Cir. 1993),

cert. denied sub nom., Mariani v. United States, 513 U.S.

1128 (1995); United States v. Ahmad, 101 F.3d 386 (5" Cir.

1996). WLF vigorously opposes the arbitrary use of criminal

prosecution, especiall’ where administrative and civil

remedies are available to resolve alleged regulatory

infractions.

WLF is able to bring a broader perspective to this

case than the parties and presents additional reasons why this

Court should grant the Petition, including the important issue

of whether the Government must prove a defendant’s

criminal intent to convict the defendant of “negligently

violating” the Clean Water Act.

! Pursuant to S. Ct. R. 37.6, WLF hereby affirms that no counsel for

either party authored any part of this brief, and that no person or entity

other than WLF and its counsel provided financial support for preparation

or submission of this brief.

This brief is being filed with the consent of all the

parties. Letters of consent are on file with the Clerk of this

Court.

INTRODUCTION AND STATEMENT OF THE CASE?

Edward Hanousek, Jr. has petitioned this Court to

review his criminal conviction under the Clean Water Act for

which he received the maximum sentence -- twelve months

imprisonment (six months incarceration and six months

confinement in a halfway house) and an additional six

months of supervised release. WLF urges this Court to grant

certiorari, not simply because the conviction and sentence are

unconscionable, but because the Ninth Circuit, in affirming

Mr. Hanousek’s conviction, has set a precedent which

violates due process.

In 1994, Mr. Hanousek’s employer, the Pacific &

Arctic Railway Company (“PARN”’) hired an independent

contractor, Hunz & Hunz (“H&H”), to straighten a 1000-foot

section of track on the White Pass & Yukon Railroad line.

The operation involved removal of rock outcroppings and

disposal of the resulting debris. H&H employees used

backhoes to load debris from the operation into rail cars for

transport off-site. A petroleum pipeline, not owned or

operated by either PARN or H&H, runs adjacent to this

section of track. To prevent damage to the pipeline, H&H

placed a protective cover (consisting of railroad ties, sand and

2 The facts set forth herein were extracted from the Ninth Circuit's

opinion in United Stated v. Hanousek, the Petition for Certiorari, and the

Petitioner's Opening Brief filed in the Ninth Circuit. Although WLF

concurs with Petitioner's Statement of the Case, certain facts merit

additional emphasis.

ballast material) over a 300-foot section of the pipeline. In

addition, H&H created a work platform of sand and gravel

from which the backhoe was operated. According to one of

the H&H backhoe operators, the project never required the

backhoe to leave the work: platform.

Sometime after H&H had commenced working on the

project, PARN hired Mr. Hanousek as a “roadmaster’”’ for the

White Pass & Yukon Railroad. In this position, one of Mr.

Hanousek’s responsibilities was overseeing the work being

performed by H&H. Hanousek directed what work was to be

done by H&H, but he did not direct how it was to be done.

As an independent contractor, it was H&H’s responsibility to

perform the work in a professional manner.

One evening, an H&H backhoe operator noticed a few

rocks laying alongside the track near the pipeline

approximately 100 yards from the active work site area.

Instead of walking over on foot to move the rocks by hand,

the backhoe operator apparently decided it would be easier to

move the rocks with the backhoe. Accordingly, the H&H

employee drove the baekhoe off of the work platform,

rumbled 100 yards to the location of the debris, and

attempted to sweep the rocks away from the tracks with the

backhoe bucket. Unfortunately, the backhoe bucket

accidentally struck and cracked an unprotected section of the

pipeline, causing a leak. The backhoe operator immediately

radioed the pipeline’s pump station, and the pipeline was shut

down within a few minutes. Nevertheless, witnesses reported

seeing a sheen of oil on a nearby Skagway River after the

accident.

The H&H backhoe operator did not tell Hanousek

about the rock debris, nor ask for guidance on how to clear

such debris. Hanousek was not even in the area when the

accident occurred. Rather, he was off duty and at home.

Nevertheless, Hanousek was convicted of “negligently”

violating the Clean Water Act’s prohibition on discharging

oil in harmful quantities to “navigable waters,”

33 U.S.C. §§ 1319(c)(1 (A) & 1321(b)(3) (1994).

The district court instructed the jury that to find

Hanousek guilty, they need only conclude that the discharge

was caused by Hanousek’s negligent conduct -- defined by

the district court as the failure to use reasonable care. It is

not clear from the Ninth Circuit’s opinion what Hanousek

did -- or did not do -- that constituted the negligent act. WLF

does not intend to dwell on that troubling question. Rather,

WLF’s focus is the Ninth Circuit ruling that the Government

need only prove ordinary negligence, rather than criminal

negligence, to convict Hanousek because the Clean Water

Act is “public welfare legislation.” United States v.

Hanousek, 176 F.3d 1116, 1121 (9" Cir. 1999).

SUMMARY OF ARGUMENT

The general rule is that to obtain a cnminal

conviction, the Government must prove beyond a reasonable

doubt that the defendant possessed a criminal state of

mind -- mens rea. But, as the Ninth Circuit notes, the “public

welfare doctrine” creates the following exception to this rule:

The Government need not prove mens rea as an element of a

crime where a defendant is involved in an activity which the

defendant should know may result in severe damage or injury

to public welfare.

Due process, however, must operate as a “governor”

of the public welfare doctrine. A fundamental axiom of due

process is that ordinary citizens must be given fair warning of

what constitutes a criminal offense. Such fair warning is

lacking in the case of the Clean Water Act’s “negligence”

provision. Ordinary citizens do not possess the specialized

knowledge necessary to distinguish lawful from unlawful

discharges under the Clean Water Act’s complex regulatory

framework. Such complexity alone conflicts with the

rationale for applying the “public welfare” doctrine -- i.e., the

presumption that the actor should know his activity poses a

danger to society and is heavily regulated -- and instead

warrants application of the general rule that the Government

must prove a defendant’s criminal intent to sustain a criminal

conviction.

The due process limitation on the public welfare

doctrine is brought into sharp relief in cases like the present

one, where successive acts by independent actors combine to

cause the violation. According to the Ninth Circuit,

Mr. Hanousek “negligently violated” the Clean Water Act

prohibition against discharging oil to navigable waters,

notwithstanding that an H&H employee, not Mr. Hanousek,

was the party that accidentally discharged the oil. Not only

does this holding conflict with the plain language of the

Clean Water Act’s criminal provision (which applies to the

person discharging the oil), but it also runs roughshod over a

fundamental tenet of the public welfare doctrine, namely, that

mens rea may be eliminated only where the defendant stands

in a position that “places him in responsible relation to a

public danger, such that he should be alerted to the

probability of strict regulation.” Staples v. United States, 511

U.S. 600, 607 (1994). Mr. Hanousek -- a “roadmaster” in

charge of railroad tracks -- is not an environmental manager

for the pipeline company, nor one whose position even

arguably includes environmental responsibilities.

The Court was last presented with the question of

whether the Clean Water Act is public welfare legislation in

1994 when the Ninth Circuit’s decision in Weitzenhoff v.

United States, 35 F.3d 1275, was the subject of a petition for

writ of certioran. The Court declined to review the Ninth

Circuit decision affirming a Clean Water Act ccnviction of

the defendant for “knowing” violation without a showing of

criminal intent to violate the law. 513 U.S. 1128 (1995) (sub

nom., Mariani v. United States). Since that time, confusion

over whether the Clean Water Act is a public welfare statute

has become pronounced. As the petitioner states, the circuits

are divided on the issue.

There is now a compelling need for guidance from the

Supreme Court. This need is magnified by the fact that

similar criminal provisions are found in other, equally

far-reaching statutes, such as the Clean Ajir Act,

42 U.S.C. § 7413(c). Without the Court’s guidance, we risk

criminalizing conduct that, to the average citizen, would not

be perceived as criminal. One need not conjure up a parade

of horribles to illustrate the danger. It cannot get much worse

than the facts of this case.

REASONS FOR GRANTING THE WRIT

I. THE CLEAN WATER ACT IS NOT “PUBLIC

WELFARE” LEGISLATION

A. The Public Welfare Doctrine Always Has

Been Limited to Inherently Dangerous

Activities For Which the Penalty is Light

The antecedents of the public welfare doctrine are

interwoven with the mse of the industrial age, which

transformed a primarily agrarian society into one dominated

increasingly by mechanization and dependence on care

expected of third parties. That transformation had benefits,

but also costs. Society faced new dangers, which the laws

were ill equipped to prevent --tainted foods could be

packaged and quickly delivered to a large number of people;

)

water poisoned with ecoli bacteria could be piped to an

unsuspecting public.

The earliest cases to articulate the public welfare

doctrine come from the English courts. For example, in

Regina v. Woodrow, 15 M. & W. 404 (Exch. 1846), a

criminal action was brought against a tobacco dealer to

enforce a forfeiture of £200 for possessing adulterated

tobacco. The Court of Exchequer held the respondent liable

even though he proved that he had purchased the tobacco as

genuine, and “had no knowledge or cause to suspect” that it

was not so. “It is very true,” said Baron Parke, “that it may

produce mischief because an innocent man may suffer from

his want of care in not examining the tobacco he has

received, and not taking a warranty but the public

inconvenience would be much greater, if in every case the

officers were obliged to prove knowledge. They would be

very seldom able to do so.” The penalty in Regina v.

Woodrow involved no possibility of imprisonment, the

prohibited conduct caused a very direct and widespread

public annoyance, and the existence of a mens rea was

peculiarly difficult if not impossible for the state to prove.

Seventy-six years later, this Court carved out the same

exception to the otherwise applicable rule that proof of

criminal intent is a prerequisite to criminal conviction. In

United States v. Balint, 258 U.S. 250 (1922), the Court held

that the Government did not have to prove men rea to convict

a defendant of selling opium without a registration required

under the Narcotics Act of 1917: “{W]here one deals with

others and his mere negligence may be dangerous to them, as

in selling diseased food or poison, the policy of the law may,

in order io stimulate proper care, require the punishment of

the negligent person though he be ignorant of the noxious

character of what he sells.” Jd. at 252-53.

This Court’s articulation of the doctrine has not

materially changed since that time, except to clarify that a

defining characteristic of public welfare legislation is that the

criminal offense typically involves little or no imprisonment.

See, e.g. Morissette v. United States, 342 U.S. at 256 (1952)

(“[P]enalties commonly are relatively small, and conviction

does no grave damage to an offender’s reputation”); Staples

v. United States, 511 U.S. 600, 616, 618 (1994) (“[T]he cases

that first defined the concept of the public welfare offense

almost uniformly involved statutes that provided for only

light penalties or short jail sentences. ... [A] severe penalty

is a further factor tending to suggest that Congress did not

intend to eliminate a mens rea requirement”). See also

United States v. Int'l Minerals & Chem. Corp., 402 U.S. 558

(1971).

B. The Ninth Circuit Misapplied The Public

Welfare Doctrine To The Clean Water Act

The “negligent violation” provision of the Clean

Water Act does not fit the profile of public welfare

legislation. The potential punishment for criminal violations

is anything but light; and the materials and activities subject

to regulation are not of a nature that one should be presumed

to be aware. More fundamentally, the public welfare

doctrine’s rationale for eliminating the mens rea requirement

does not apply to the present case where the defendant is not

the party handling a dangerous substance or engaging in a

dangerous activity. Under such circumstances, it is

indefensible to presume the requisite intent on the part of this

defendant.

1. Punishment for negligent discharges is

not light.

Under the criminal enforcement provisions, a first

offender who “negligently violates” any of the many

substantive requirements of the Clean Water Act may be

fined $25,000 per day per violation and imprisoned for up to

one year. 33 U.S.C. § 1319(c)(1). For second violations, the

maximum penalty is $50,000 per day and up to three years

imprisonment. Thus, with felony-length sentences possible,

one could hardly characterize the punishment for violations

as light.

The possibility of a lengthy sentence for a minor

violation of the Clean Water Act is not merely theoretical.

Under the United States Sentencing Guidelines, § 2Q1.2 and

§ 2Q1.3, first offenders are routinely sentenced to lengthy

prison terms for minor regulatory offenses that do not

perceptibly threaten human health. For example, in United

States v. Mills, a father and son were sentenced to prison for

21 months for placing clean building sand on a quarter-acre

lot that EPA deemed to constitute a wetland. 817 F. Supp.

1546, 1548 (N.D. Fla. 1993), aff'd, 904 F.2d 713 (11" Cir.

1994). In short, by any standard the punishments meted out

under the Clean Water Act are severe in proportion to the

harm caused by the offense and the culpability of the

defendant.

2. The conduct proscribed by the Clean

Water Act is not apparent to the

average citizen.

The reach of the Clean Water Act is so broad that

only an environmental expert could be expected to

distinguish between lawful and unlawful discharges. Two

CWA requirements subject to criminai punishment illustrate

the point, specifically: (1) the prohibition against the

discharge of “pollutants” to “navigable waters’ without a

CWA permit (33 U.S.C. § 1311); and (2) the prohibition

against the discharge of oil and “hazardous substances” to

“navigable waters” (33 U.S.C. § 1321(b)(3)) (the provision

allegedly violated by Mr. Hanousek). The seemingly simple

phrases used in these two CWA prohibitions belie a complex,

ever-changing maze of regulation that has created decades of

work for thousands of environmental lawyers and

consultants.

Under the Clean Water Act, “navigable waters” are

defined as “waters of the United States, including the

territorial seas.” 33 U.S.C. § 1362(7). EPA and the United

States Army Corps of Engineers (the “Corps”), which share

regulatory authority under the Clean Water Act, each have

promulgated regulations broadly defining “waters of the

United States” to include “intrastate lakes, rivers, streams

(including intermittent streams), mudflats, sandflats,

wetlands, sloughs, prairie potholes, wet meadows, playa

lakes, or natural ponds the use, degradation or destruction of

which would affect or could affect interstate or foreign

commerce.” See 40 C.F.R. § 122.2 (EPA definition);

33 C.F.R. § 328.3 (Corps definition).

Many of the terms used in the EPA/Corps definition

of “waters of the United States” also have been defined

expansively, such as the term “wetland.” Under EPA and

Corps regulations, the term “wetland” encompasses dry land

that supports “vegetation typically adapted for life in

saturated soil conditions” (“hydrophytic vegetation”).

See 40 C.F.R. § 230.3(t); 33 C.F.R. § 328.3(b). Identifying

“hydrophytic vegetation” is so complicated that in 1987 the

Corps published a severail-hundred page manual to “ensure

consistent regulation of wetlands.”’ One year later, EPA

published its own procedures for identifying and delineating

wetlands.*

Similar complexities abound in identifying the

“pollutants” for which one must obtain a permit before

discharging to “navigable waters” (33 U.S.C. § 1311). The

“pollutants” that one may not discharge without a permit

include far more than simply “obnoxious waste materials”

(quoting from /nt'l Minerals, supra) that pose patent dangers

to water quality. Indeed, the term “pollutant” is defined so

broadly that virtually anything one discharges to “waters of

the United States” requires a permit.’ As the five dissenting

judges in United States v. Weitzenhoff observed, one could

violate the Clean Water Act prohibition on unpermitted

discharges of “pollutants” simply by “skipping a stone into a

lake” or “pouring hot stale coffee down the drain.” 35 F.3d

at 1298.

It is no easier to identify “hazardous substances” the

discharge of which is_ absolutely prohibited

(33 U.S.C. § 1321(b)(3)). The list of “hazardous substances”

subject to the absolute discharge prohibition under the Clean

Water Act is populated with substances that few would

regard as inherently dangerous or hazardous -- e.g., copper

3 US. Army Corps of Engineers, Wetlands Delineation Manual (1987).

4 EPA, Wetland Identification and Delineation Manual (1988).

> The term “pollutant” means “dredged spoil, solid waste, incinerator

residue, sewage, garbage, sewage sludge, munitions, chemical wastes,

biological materials, radioactive materials, heat, wrecked or discarded

equipment, rock sand, cellar dirt and industrial, municipal, and

agricultural waste discharged into water.” 33 U.S.C. § 1362(6).

and nickel. See 40 C.F.R. §302.4, Appendix A.

Complicating matters further, EPA has amended the list

countless times. Environmental professionals spend

considerable time tracking such changes and modifying

corporate compliance procedures as appropriate.

Not even an environmental professional could be

expected to know all of the nuances of the Clean Water Act,

much less a layman like Mr. Hanousek.

3. The Ninth Circuit's interpretation of

“negligently” is not appropriate in the

criminal context.

Perhaps the most troubling aspect of the Ninth

Circuit’s decision is the notion that an individual can be

criminally prosecuted for “negligently” discharging a

regulated substance where the individual is not the party that

discharged or directed the discharge of the substance. Rather,

under the Ninth Circuit holding, anyone can be imprisoned

for a negligent act or omission which, in combination with

another’s subsequent negligent act, causes a discharge of a

regulated substance. That means that someone like

Mr. Hanousek, a “roadmaster” who is far removed the world

of “hazardous substances,” “pollutants,” and “navigable

waters,” goes to jail if he makes a mistake which is ruled to

be a proximate cause of a prohibited discharge. Such a

construction impermissibly cleaves apart the criminal

act -- “negligently violates” -- from the actor (“Any person

who”) in a way that Congress could not have intended.

In previous cases where this Court has held an

individual criminally liable for an offense in which the

individual did not directly participate (e.g., shipping or

labeling adulterated drugs), the Court relied on the theory that

one who aids and abets a violation is as guilty as the

principal. See United States v. Dotterweich, 320 U.S. 277,

281, 284 (1943) (holding corporate officer liable for aiding

and abetting a violation). Negligent supervision of a

subcontractor whose subsequent negligence violates the

Clean Water Act does not constitute “aiding and abetting” the

violation. See Nye & Nissen v. United States, 336 U.S. 613,

618-19 (1949) (“[T]o aid and abet another to commit a crime,

it is necessary that a defendant must ‘participate in it as in

something he wishes to bring about, that he seek by his action

to make it succeed’’’) (citations omitted). See also United

States v. Hitachi America, Ltd., 172 F.3d 1319, 1337 (Fed.

Cir. 1999) (holding that one cannot negligently aid and abet a

negligent violation through mere contributory negligence).

In sum, the Ninth Circuit’s application of the “public

welfare doctrine” to the Clean Water Act “negligent

violation” provision violates due process. The Government

must prove more than ordinary negligence on the part of a

defendant to obtain a criminal conviction.®

threat of criminal conviction based on an ordinary negligence standard,

the Clean Water Act's elaborate civil enforcement scheme forecloses that

scenario. EPA may prosecute CWA violators through any of three

possible mechanisms: (1) EPA may seek administrative penalties of up to

$10,000 per day per violation in a hearing before an administrative law

judge (33 U.S.C. §§ 1319%(g) and 1321(c)(6)); (2) EPA may seek civil

penalties of up to $25,000 per day per violation in federal district court

(33 U.S.C. §§ 1319%(d) and 1321(c\7)); and (3) EPA may issue

administrative orders (“cease and desist orders”) or pursue injunctive

relief in federal district court (33 U.S.C. §§ 1319(a), (6) and 1321(e)).

II. THE IMPLICATIONS OF THE NINTH

CIRCUIT’S DECISION REACH BEYOND THE

CLEAN WATER ACT

A. The Clean Air Act Has A Similar Criminal

Provision

The implications of United Stated v. Hanousek are not

limited to the Clean Water Act. The Clean Air Act also

contains criminal enforcement provisions, which punish

individuals for negligent conduct. Specifically, any person

who “negligently releases into the ambient air any hazardous

air pollutant” and thereby “negligently places another person

in imminent danger’ may be imprisoned for up to one year.

For second offenses, the maximum punishment is two years.

See 42 U.S.C. § 7413(c)(4).

Cnminalizing ordinary negligence under the Clean

Air Act would violate due process for the same reasons that

criminalizing ordinary negligence under the Clean Water Act

violates due process -- namely, the penalties are severe, the

conduct proscribed is not readily understood by the average

citizen, and one need not even be the “releaser” to be guilty.

B. The Ninth Circuit’s Decision Will Have a

Negative Impact on Environmental

Protection

In addition to incorrectly presuming knowledge of a

complex regulatory scheme by an individual whose position

does not “place him in responsible relation to a public

danger” (i.e., environmental damage), the Hanousek decision

sends a troubling message to those charged with

environmental management.

The pervasiveness and complexity of environmental

regulation has created an expression among the

environmental managers whose job is to ensure their

employer complies with those regulations: “Be a manager,

go to jail.” If United States v. Hanousek is allowed to stand,

this gallows humor comes frighteningly close to being the

truth. To paraphrase the dissent in United States vy.

Weitzenhoff, it would impose on these vitally important

protectors of the environment a massive legal risk, unjustified

by law or precedent. 35 F.3d at 1298. Do we enhance

environmental protection by incarcerating citizens for a

simple error in judgment? Or does such a prosecution

actually undermine environmental protection by setting the

threshold for criminal conduct so low that we will discourage

people from serving in a corporate environmental capacity?

CONCLUSION

For the foregoing reasons, and those discussed in the

Petition for a Wnt of Certiorari, the Court should grant

review.

Respectfully submitted,